A probationer who failed
to meet with his probation officer because the federal government deported him
upon his release from jail did not willfully violate his probation, this
district’s Court of Appeal ruled yesterday.

Div. Three reversed the
judgment of Los Angeles Superior Court Judge Ronald S. Coen that Hector
Rodriguez Galvan had violated the terms and conditions of his probation after
he failed to report to the probation department both after his release from
custody and after his subsequent reentry into the United States.

Presiding Justice Joan
D. Klein wrote that insufficient evidence existed to sustain revocation on the
latter ground because there was no showing of when Galvan reentered the
country, and that the former ground did not constitute a willful violation
because the federal government deported Galvan to Mexico immediately upon his
release.

Galvan pled guilty in
February of 2003 to cocaine possession. The trial court deferred entry of
judgment and Galvan was placed on probation for three years.

On Aug. 22, 2005, he
pled no contest to burglary and admitted he had violated his earlier
probation. The trial court imposed a three-year prison term but did not
execute it, instead revoking and reinstating Galvan’s earlier probation with
the condition that he serve 365 days in county jail, the sentence to run
concurrently with the burglary sentence.

The terms of probation
required Galvan to contact a probation officer within 24 hours of his release
from county jail, to not reenter the country illegally if he left, and, if he
did leave, to report to the probation officer within 24 hours of reentry with
documentation proving he was in the country legally.

Galvan failed to appear
for a Dec. 27, 2005 probation violation hearing, and a bench warrant was issued
for his arrest. On April 12, 2006, he was arrested in the United States and
taken into custody.

On June 12, 2006, the
trial court held a formal probation violation hearing, and Galvan’s probation
officer testified that, according to the records of the U.S. Citizenship and
Immigration Services, Galvan had been deported to Mexico on Nov. 1, 2005.

The officer testified
that she was never in contact with Galvan while serving as his probation
officer, that she was unaware he had returned to the United States until being
subpoenaed to appear at the hearing, and that she could find no record that he
had reported to the probation department after his release.

The trial court found
Galvan in violation and revoked his probation in both cases. It executed his
three-year sentence in the burglary case, and sentenced him to state prison for
two years in the drug case, with sentences to run concurrently.

Klein wrote that the
trial court apparently revoked Galvan’s probation both because he failed to
report within 24 hours of his release from county jail, and because he
subsequently failed to report within 24 hours of his reentry into the United
States.

Observing that a court
may revoke probation in its discretion where it has reason to believe that a
probationer has violated any of the conditions of probation, Klein noted that
this determination must be supported by evidence that the probationer’s conduct
constituted a willful violation of the probation’s terms.

Applying this standard
to the decision to revoke probation for Galvan’s failure to report within 24
hours of reentering the country, Klein held that the trial judge abused his
discretion because the record contained no evidence showing how long Galvan had
been back in the United States before he was arrested in April of 2006.

Turning to Galvan’s
failure to report within 24 hours of leaving jail, she agreed with Galvan that
his immediate deportation following his release demonstrated that his failure
to report was not willful.

Pointing out that
Galvan’s deportation “obviously prevented him from reporting in person,” Klein
said that a reasonable person in his position would have believed such an
appearance to be excused under the circumstances.

Concluding that his
failure to report was not the result of irresponsible behavior, disrespect for
the orders and expectations of the court, or a willful violation of his
probation conditions, Klein said the revocation had to be reversed.

Klein was joined in her
opinion by Judge H. Walter Croskey, and Judge Richard D. Aldrich.